Ukraine – Presidency in turbulences

The recent weeks have seen overwhelmingly fast-paced developments in Ukraine. After months of protests, the conflict between government and protesters escalated and resulted in the deaths of at least 88 people. Government and opposition agreed on the return to the 2004 constitution which curtailed presidential power, yet parliament later moved to oust the president and installed the speaker of parliament as acting head of state. This post will give a brief overview of the developments and explain what changes were introduced with regard to the presidency.

Return to the 2004 constitution

Following the Orange Revolution, parties agreed to amend the Ukrainian constitution of 1996 (before then the country had operated under an amended version of their Soviet constitution). For the most part, these amendment concerned the role of the president. After having been a prime example of a president-parliamentary system under which the prime minister and government was subordinate to the presidency, the 2004 amendments transformed Ukraine’s political system to a Premier-presidential system. In 2010, president Yanukovych and his Party of the Regions reverted these changes by having the Constitutional Court – now staffed with the president’s allies – declare the changes unconstitutional.

The agreement between president and opposition of 21 February included to once again return to the the 2004 version which was confirmed by parliament on the same day. As can be seen in the table above, the differences largely concern presidential power in government formation and dismissal as well as the president’s power to annul government acts. However, the president retains his powerful presidential veto. Given that an absolute 2/3 majority is needed to override a veto but only a relative majority to adopt a version that includes the president’s amendment, the presidency can still dominate the legislative process without much effort.

Ousting of Viktor Yanukovych from the presidency

One day after the signing of the aforementioned agreement, parliament surprisingly decided to oust president Yanukovych from office even though it appeared that he would agree to step down by the end of the year and clear the way for early presidential elections. While many media outlets reported that Yanukovych had been impeached, this is not quite correct as parliament failed to follow the procedures laid down in Art. 111 of the Constitution (unaffected by the 2004 amendments). These require that an absolute majority of deputies establishes a special investigatory commission. Following the investigation a 2/3-majority of all deputies must then bring the case to the Constitutional Court or the Supreme Court (depending on what the president is accused of). Only if the respective court confirms the constitutionality of the procedure and the allegations can parliament impeach the president with a 3/4-majority of its members.

Results of the vote to oust Viktor Yanukovych from the presidency

While the Ukrainian parliament passed its decision to remove Yanukovych from office with 73% of its members (and with unsuprising absences on the part of Viktor Yanukovych’s ‘party of the Regions’), the vote was thus not an impeachment of the president in the constitutional-legal sense. Admittedly, the actual relevance of this violation is decreasing by the minute – even though Russia uses it as part of their argumentation not to accept the new regime – and will likely be dismissed as a ‘procedural error’ once a new president is elected.

Speaker Oleksander Turchynov as acting president & elections on 25 May

On the same day, parliament also elected the former deputy Prime Minister Oleksander Turchynov as its new speaker. Pursuant to Art 112 of the constitution Turchynov then took over the role of temporary head of state. As acting president Turchynov is forbidden to exercise a number of powers, in particular he cannot:

– convey public addresses to either the Ukrainian people or parliament
– dissolve parliament or set a date for early parliamentary elections
– propose new ministers of foreign affairs and defence, or make appointments to the constitutional court or National Bank
– grant pardons

Parliament also scheduled new presidential elections for 25 May (given the limited powers of an acting president to dissolve parliament this is the necessary precursor to early parliamentary elections). Potential candidates include former Prime Minister Yulia Tymoshenko, who was released from jail on the same day as the ousting of president Yanukovych, yet whose candidacy is seen with much scepticism among Ukrainians. UDAR-chairman Vitali Klitschko (read more about his presidential ambitions here) might have better chances. His decision to refrain from being part of the new government led by Arseniy Yatsenyuk was widely interpreted as a move to keep clear of any blame the government might attract over the necessary but painful economic reforms and thus start into the presidential race as a ‘fresh’ candidate.

[N.B.: The post previously stated that a 2/3 majority was needed for the final impeachment vote whereby in fact 3/4 are needed. Thanks to Justin Grove for pointing this out.]

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3 thoughts on “Ukraine – Presidency in turbulences”

Thank you very much for this article and for such an attention to constitutional details.
I would like to add that the parliament in fact passed a simple motion stating that the deputies agreed that the president “unconstitutionally removed himself” from the office. So this literally means that deputies just accepted the president’s own decision and moved on. I don’t know how else it can be described other than it’s incredibly funny.

Thank you very much for a very informative article! Do you know why parliament did not go the constitutional-legal way? Did they think it was unnecessary, not possible (e.g. because Constitutional Court is staffed with Yanukovych’s allies), no time..?

I not being an expert assume it was a time thing. First they must get a simple majority to agree to investigate; then the investigation must actually take place, being done by an ad hoc commission; then the 2/3rds vote has to be made; then the courts have to be consulted: the Constitutional Court on whether the impeachment procedure and investigation were done correctly and the Supreme Court on whether the president is actually being accused of treason or another crime (though I don’t read anywhere that what they decide actually matters but they have to do it at the Rada consider it, though I’m not an expert); then the the final impeachment vote has to take place. Not something you can do on a Saturday afternoon. However there is a small error in the post above which may be very relevant: the final impeachment vote required a 3/4 majority. And as they only had 73% of the Rada impeachment was not an option even if they wanted to take the time to do it.